Habeas Corpus The Guardian of Liberty
Gary Hunt Outpost of Freedom June 19, 2013
Habeas Corpus — Its meaning in Our History
Suppose you lived in Washington state or Colorado. Suppose, too, that consistent with state law, you grow, process, and used marijuana. Now, state law says you can, but federal law says that you can’t. What happens if the feds arrest you and charge you with a crime?
The Constitution/Bill of Rights says that the right to keep and bear arms cannot be infringed. Would a federal requirement that demands that you register your firearms, be such an infringement? Could you be successfully prosecuted if charged with failing to register your firearms?
This article is divided into five sections:
- Introduction to Habeas Corpus
- Court Cases and enactments affirming Habeas Corpus in the United States, during its first century
- The Fourteenth Amendment and its effect on the citizen
- The Fourth Branch of Government, and, who is subject to that unconstitutional branch
- Summation – that puts all of the pieces neatly into place
If you wish to bypass the first four sections, but want to understand just what they prove, go to the “Summation”, which puts all of the pieces in place.
Introduction to Habeas Corpus
Habeas corpus, also known as the “sacred writ”, is something that we have heard about since our youth. At best, we were told that it means to bring the body forward, as when somebody is falsely imprisoned. We knew that it was in the Constitution, but beyond that, we knew very little about it.
Before we start, let’s take a short quiz to see what we know and where we are starting from.
What does “writ of habeas corpus” mean?
A) A writ to remove someone who has been detained to another jurisdiction or court. B) A writ to move a civil case to a higher court. C) A writ to move a civil case to a different court. D) A writ to move a prisoner to a superior court. E) A writ to assure that a person condemned to death receives complete due process to higher courts. F) The “sacred writ” that we learned about in school. G) A writ, meaning, “you have the body to testify,” to bring a prisoner from jail or prison to court. H) A writ requiring a person detaining another to prove that he is lawfully detained.
To fully understand habeas corpus, we will first have to clear our minds of misconceptions that have been promulgated through our entire lifetimes. The last Habeas Corpus ad subjiciendum (sacred writ) heard by the United States Supreme Court, at least as far as I have been able to determine, was the decision of In Re Lane, back in 1890, yes, 123 years ago. So, let’s see what Habeas Corpus meant, back then.
Has the government become good guys, where we need not fear that they might be overzealous in prosecuting citizens? Or, have we lost that which was so sacred to the Founders, the sacred writ, which was protected by the Constitution?
Is it possible that this lost art is no longer taught in today’s law schools? Perhaps for decades? Is it possible, since none has been heard in the last 123 years, that modern attorneys have not even looked into the reason for its inclusion in the Constitution? Is it possible that even the judges are not really aware of habeas corpus, or, do they intentionally avoid recognizing demands for the sacred writ?
Nullification is discussed, at great length, within the patriot community, as a means of suppressing federal intrusion. Is it possible that the sacred writ is the only clearly constitutional means of nullifying unconstitutional federal laws? And, an individual can challenge that such laws, although there is no constitutional provision for a state of the Union to challenge such unconstitutional laws?
As you continue reading, please do so without any preconceptions or misconceptions regarding other proposed techniques of nullification, or previous understanding of Habeas Corpus. Enter into this subject with an open mind and read, if necessary, the referenced sources.
The Meaning of Habeas Corpus
Habeas corpus, by itself, has numerous meanings. When we hear of a habeas corpus, it is seldom, if ever, Habeas Corpus ad subjiciendum; rather, it is on appeal, or, an order for change. The “sacred writ” is not an appeal, rather, a question of jurisdiction – – whether to challenge charges and/or imprisonment are based upon a constitutional law.
The Sacred Writ is defined as follows (Black’s Law Dictionary, 5th Edition):
habeas corpus ad subjiciendum. A writ directed to the person detaining another, and commanding them to produce the body of the prisoner, or person detained. This is the most common form of habeas corpus writ, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent.
This is the well-known remedy in England and the United States for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ in the English law, and the great and efficacious writ, in all manner of illegal confinement. The “great writ of liberty”, issuing at common law out of the Courts of Chancery, King’s Bench, Common Pleas, and Exchequer.
From this point on, we will be discussing only Habeas Corpus ad subjiciendum.
In 1679, the first Habeas Corpus Act was enacted in England, consolidating principles previously established, some originating from the Magna Carta.
Some excerpts from that act:
V. And be it further enacted by the authority aforesaid, That if any officer or officers, his or their under-officer or under-officers, under-keeper or under-keepers, or deputy, shall neglect or refuse to make the returns aforesaid… shall for the first offence forfeit to the prisoner or party grieved the sum of one hundred pounds; (2) and for the second offence the sum of two hundred pounds, and shall and is hereby made incapable to hold or execute his said office…
Habeas Corpus was a writ of right – and was executable upon demand. From the act, quoted above, we see that there are penalties for any government official refusing to bring the body forward. Consider that in a monarchical society, failure to respond to a writ of habeas corpus was unpardonable.
In 1768, William Blackstone, in his Commentaries, provides the following:
But the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of his caption and detention,… This is a high prerogative writ, and therefore by the common law issuing out of the court of king’s bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king’s dominions: for the king is at all times intitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.
Here, Blackstone tells us that the justices are bound, as well, to respond, timely, to the demand for a writ, even if on vacation. However, we must substitute “We the People” for “king”. After all, we are “intitled to have an account, why the liberty of any of [us] is restrained, wherever that restraint may be inflicted“.
Clearly, whether jurisdiction is obvious, or in question, the court is compelled to answer.
In the court of King’s Bench it was, and is still, necessary to apply for it by motion to the court, as in the case of all other prerogative writs… For, as was argued by lord chief justice Vaughan, “it is granted on motion, because it cannot be had of course; and there is therefore no necessity to grant it: for the court ought to be satisfied that the party hath a probable cause to be delivered.” … On the other hand, if a probable ground be shewn, that the party is imprisoned without just cause, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which “may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other.”
So, if it is demanded, it must be issued. Once demanded, the existence of probable cause is unquestionable.
Now, let’s look into what might be the cause of an improper imprisonment.
In a former part of these commentaries we expatiated at large on the personal liberty of the subject. It was shewn to be a natural inherent right, which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, nor ought to be abridged in any case without the special permission of law. A doctrine co-eval with the first rudiments of the English constitution; and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence of the Norman conquest: asserted afterwards and confirmed by the conqueror himself and his descendants: and though sometimes a little impaired by the ferocity of the times, and the occasional despotism of jealous or usurping princes, yet established on the firmest basis by the provisions of magna carta, and a long succession of statutes enacted under Edward III. To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering it’s protection impossible: but the glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful. This induces an absolute necessity of expressing upon every commitment the reason for which it is made; that the court upon an habeas corpus may examine into its validity; and according to the circumstances of the case may discharge, admit to bail, or remand the prisoner.
If the imprisonment were a result of “the ferocity of the times, and the occasional despotism of jealous or usurping princes“, then the law that lead to the imprisonment might be under “color of law” rather than lawful — in accordance with the Constitution.
Blackstone concludes his commentary on the sacred writ in unequivocal terms:
But even upon writs at the common law it is now expected by the court, agreeable to antient precedents and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government.
Therefore, writs of habeas corpus must be issued; must be immediately obeyed; and, no other filings are required. He also expounds upon what may be the cause of the enactments which are beyond the authority of the government, when he explains that habeas corpus ad subjiciendum is “a remedy the more necessary, because the oppression does not always arise from the ill nature, but sometimes from the mere inattention of government.”
Forty years (1829) after the ratification of the Constitution, William Rawle, a Constitutional scholar, in his “A View of the Constitution of the United States“, provides insight into habeas corpus, as a part of the law of the land.
Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the Constitution, as extending to the states as well as to the United States, but the nature of the writ of habeas corpus seems peculiarly to call for this construction. It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors. After erecting the distinct government which we are considering, and after declaring what should constitute the supreme law in every state in the Union, fearful minds might entertain jealousies of this great and all-controlling power, if some protection against its energies when misdirected, was not provided by itself.
In order to protect the personal liberty of every individual and repel the injustice of an unconstitutional law or despotic governors, we have the Writ of Habeas Corpus, in addition to the Bill of Rights.
If this provision had been omitted, the existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief. But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity; and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress…. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their regular functions, which are, however, confined to cases of imprisonment professed to be under the authority of the United States. But the state courts and judges possess the right of determining on the legality of imprisonment under either authority.
Rawle makes clear that even absent a provision in the Constitution, any state, with a provision for habeas corpus, could, under said state’s authority, through a judge or justice, issue a writ of habeas corpus.
Finally, the Honorable Justice Joseph Story, in his “Commentaries on the Constitution” (1833), provides additional insight:
§ 1333. In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus. At the common law there are various writs, called writs of habeas corpus. But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum... It is, therefore, justly esteemed the great bulwark of personal liberty; since it is the appropriate remedy to ascertain, whether any person is rightfully in confinement or not, and the cause of his confinement; and if no sufficient ground of detention appears, the party is entitled to his immediate discharge. This writ is most beneficially construed; and is applied to every case of illegal restraint, whatever it may be; for every restraint upon a man’s liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, in which the restraint is effected.
So, we have confirmed that from the First Habeas Corpus Act until two generations after the ratification of the Constitution, we have a consistent definition and procedure as to the purpose and administration of Habeas Corpus. Yes, 200 years of protection, that which was even true under monarchical government, from imprisonment under any law that is in violation of the Constitution.
So, what happens when the national government does not pay attention (rather, inattention) to the Constitution?
Although every state has a provision for habeas corpus within its constitution, for the sake of this discussion we will be using Florida, as this is the state where the story began.
Habeas Corpus and the Constitution
There are many rights protected under the Constitution and the Bill of Rights. However, The Right of Habeas Corpus is defined as a Privilege. Article I, Section 9, Clause 2, reads:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
To understand why it is deemed a privilege, rather than a right, we need only understand that of all of the rights protected by the Constitution, only Habeas Corpus can be suspended. Had the Founders not seen the necessity of suspending Habeas Corpus during “Rebellion or Invasion”, then Habeas Corpus would have been defined as a right, as were others enumerated therein, or within the Bill of Rights. It is sufficient, however, to understand that they felt the necessity of including it.
From the Florida Constitution, Article 1 – Declaration of Rights, Section 13:
Habeas corpus.–The writ of habeas corpus shall be grantable of right, freely and without cost. It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the public safety.
Well, there you have it. Without cost and without delay is, without a doubt, a right, as both the state and the federal government should treat it.
Court Cases and enactments affirming Habeas Corpus in the United States, during its first century
What better way to understand the significance of habeas corpus in the United States of America, then to look at previous court cases, both habeas corpus and non-habeas corpus, to see what influence it had on our relationship with the national government.
We will begin in the year 1833, with a non-Habeas Corpus case, to see what our relationship with the federal government was. Mr. Barron owned a dock in Baltimore, Maryland. The City of Baltimore, in dredging the river, made the area in front of Barron’s dock too shallow for normal traffic. Barron filed suit against the City of Baltimore, arguing that under the Fifth Amendment to the Constitution, his property was taken without “just compensation”. This case was heard by the United States Supreme Court, Chief Justice Marshall giving the opinion of the Court. Understand that in this decision, the “general government” refers solely to the national government, and that “local government” refers to state and/or lesser governments. Barron v. City of Baltimore, (32 U.S. 243):
…The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated… The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.
So, the Constitution was only between the people and the general government. The people of each state were free to decide what constitution and laws best suited them.
Marshall then explains the evidence in support of the proposition of that separation by reference to Article I, Sections 9 and 10, of the Constitution:
If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the state; if, in every inhibition intended to act on state power, words are employed, which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed…Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safe-guards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.
The concerns that lead to this separation of powers are explained:
Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government- [and] not against those of the local governments…These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.
We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.
What? The Constitution does not foreclose protection from the state government; only from the national government. Well, that is exactly what Chief Justice Marshall said.
Perhaps another way to understand the limitations of the national government, is to look to a law enacted in 1825. Article I, section 8, clause 17, grants Congress the power “to exercise exclusive legislation” over lands ceded to the United States by the state in which the land lies.
An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes. (March 3, 1825)
“That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the sight whereof is ceded to them [United States], and under their jurisdiction, as aforesaid, shall, willfully…”
Now, this law was enacted just 35 years after the first Congress sat under the Constitution. What did they know that we do not know? For them to punish you for crimes against property of the United States, the property had to be on land ceded to the United States, and jurisdiction also ceded to the United States. That means the state had to relinquish its jurisdiction over the property. Can there be any doubt that the Congress, in 1825, understood the limitations of their authority under the Constitution?
Perhaps now we can understand why it was decided that the Constitution did not extend its powers to the detriment of the state; why Congress should enact a law to protect its property only if that land where the property was had been ceded, so that the national government had jurisdiction over that land. By looking at what Justice Marshall said, in Marbury v. Madison (5 US 137) in 1803:
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
Now, this was not a novel idea on the part of Justice Marshall, because in 1787, before the Constitution was ratified by the states, the North Carolina Supreme Court addressed the state legislature enacting a law that was in contradiction to the state constitution, when they said, in Bayard v. Singleton (1 N.C. 42):
But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.
Interestingly, they recognized that should such a law be upheld, it would have the effect of dissolving the government created by the North Carolina Constitution because that government violated the instrument of its own creation. Does that concept also apply to the United States Constitution?
Now that we have a perception of the relationship of the national government to the people, and that being the perspective of those who lived in those times and rubbed shoulders with those who wrote and/or ratified the Constitution, we will look at what is, and, what is not, within the purview of the national government, to enact into law, under the authority of the constitution.
Stephen Ableman was a US Marshal; Sherman Booth had “aided and abetted” fugitive slaves. Booth was held to “appear and answer” before the district court of the United States for the district of Wisconsin.
Booth made application for writ of habeas corpus to A. D. Smith, one of the justices of the Supreme Court of the State of Wisconsin, alleging that “the act of Congress of September 18, 1850, was unconstitutional and void” (the Fugitive Slave Act of 1850).
Booth was brought before the justice and the justice determined that “his detention was illegal, and ordered the Marshall to discharge him and set him at liberty, which was accordingly done.”
Ableman appealed to the entire Supreme Court of the State, which affirmed the decision of the associate justice.
Ableman then appealed to the United States Supreme Court, which was heard in 1858 (Ableman v. Booth [62 US 506]). Justice Taney gave the Decision of the Court:
The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that ‘this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.’… The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution…
So, if Congress “passed a law not authorized by its enumerated powers, it was not to be regarded as “the supreme law of the land”. The test, then, is whether the Fugitive Slave Act was enacted in accordance with the Constitution.
This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government…if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void.
The United States Supreme Court, then, is to judge the Constitutionality of any law. However, to do so, they must also hear the matter. Habeas Corpus being the proper means of challenging such jurisdiction; then only by Habeas Corpus can such a challenge be made, and heard by the United States Supreme Court. In this case, the Wisconsin Supreme Court did see fit to challenge the constitutionality of the Fugitive Slave Act.
However, if we look at the constitutionality of the Fugitive Slave Act of 1850, we find that it is constitutional, for the Constitution states, in Article IV, Section 2, clauses 2 and 3, respectively:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
The authority to enact such laws is clearly stated in the Constitution. The Fugitive Slave Act was enacted to provide statutory detail regarding the return of “persons” as well as punishment for violation of those provisions, of the Constitution.
Just 13 years later, in 1871, the Supreme Court of the state of Wisconsin supported another challenge to federal jurisdiction. A minor, under the age of 18, named Edward Tarble, enlisted as a soldier under the name of Frank Brown. Later, Tarble deserted, was “retaken”, and confined as a deserter.
Tarble’s father petitioned the court commissioner of Dane County, Wisconsin for a writ of habeas corpus. The writ was issued and Tarble was brought before the court. The court “[h]eld that the prisoner was illegally imprisoned and detained”, and ordered that he be discharged from custody.”
The officer detaining Tarble filed with the Supreme Court of the State, which affirmed the lower court’s discharge of Tarble. The matter then advanced to the United States Supreme Court (In Re-Tarble (80 US 397). The Court explains the separation of jurisdictions:
There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres. Each has its separate departments; each has its distinct laws, and each has its own tribunals for their enforcement. Neither government can intrude within the jurisdiction, or authorize any interference therein by its judicial officers with the action of the other. The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories… The Constitution and the laws passed in pursuance of it, are declared by the Constitution itself to be the supreme law of the land, and the judges of every State are bound thereby, ‘anything in the constitution or laws of any State to the contrary notwithstanding.’ Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the National government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States. This temporary supremacy until judicial decision by the National tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments
Further on, the Court explains the procedure whereby the determination of jurisdiction can be challenged by a state court. If the lower court determines unconstitutionality, and a contest as to jurisdiction still exist, then the Supreme Court of the United States will make the final determination.
State judges and State courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government… And the process or orders, under which the prisoner is held, should be produced with the return and submitted to inspection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer, in good faith, under the authority, or claim and color of the authority, of the United States, and not under the mere pretence of having such authority.
The dilemma is whether the lower court recognizes what appears to be a conflict in jurisdiction. Should that lower court, accept, prima facie, that the officer of the United States is correct in his claim of jurisdiction (“in good faith“), or, should any doubt arise, “under the mere pretense of having such authority“, should that lower court hold the position of defending jurisdictions when there appears to be no constitutional authority, or, is in conflict with the laws of that state?
To accept that any federal officer can make a proper decision as to jurisdiction, and to leave that remedy solely to the federal courts, denies justice and leaves us with an impractical remedy. In that same opinion (Tarble), Chief Justice Salmon P Chase, of the United States Supreme Court, in a dissenting opinion, says:
I cannot concur in the opinion just read. I have no doubt of the right of a State court to inquire into the jurisdiction of a Federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry.
To deny the right of State courts to issue the writ, or, what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases…
Absent such ability of the states to challenge jurisdiction, at least when there is no direct Constitutional nexus (nexus is defined as a connection or series of connections linking two or more things together), would result in the states and the people subjecting themselves to absolute federal despotism. This, clearly, was not the intent in either Tarble, or, the Constitution. This means that an explicit grant of power or authority has to exist in the Constitution, otherwise an enactment is not legal, and, can be stricken down, as we will see.
Regardless of whether a state can defend its citizens against overreaching federal intrusions, the fact is that in Tarble, there was a nexus to the Constitution (that is, a Constitutional nexus) in Article I, Section 8, clause 12, and, Article II, Section 2, clause 1, to wit:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
The President shall be Commander in Chief of the Army and Navy of the United States…
For Congress to raise and support Armies, there must be a degree of control over the resources and obligations of that Army. As the President, as Commander in Chief, there can be no doubt as to the implications of jurisdiction over the members of the Army, once they have enlisted and are still under that enlistment. Tarble, regardless of age, upon his enlistment, was subject to the jurisdiction of the United States military system.
We learned, from Barron v. City of Baltimore, that the Constitution applies only to the relationship between an individual and the “general government”. That each state, when they adopted their constitutions, established both government and laws suitable to the people of that state. The Constitution was a prohibition against federal intrusion into those matters left solely to the state.
We saw, in the act of 1825, that the federal government, to protect its own property, could only do so on lands ceded by the state to the federal government. We can ponder whether the limits of jurisdiction were superfluous words, or, rather, were they simply more explicit, in defining the extent of their authority, when writing laws.
Chief Justice Marshall and the North Carolina Supreme Court recognize that a law in violation of the Constitution cannot be allowed to stand. North Carolina goes even further by pointing out that if the government created by a constitution violates the terms of the constitution, they void the constitution — and cease to exist under it.
From Ableman v. Booth, we see that federal jurisdiction requires a nexus to the Constitution. We find the same nexus in In Re Tarble, and an explanation that both governments, state and federal, have their own spheres, laws, and tribunals for their enforcement, and that one cannot encroach upon the other.
The Fourteenth Amendment and its effect on the citizen
Next, though not a Habeas Corpus case, we will demonstrate that the Constitutional nexus must be clear and indisputable. This case arises out of a statute enacted after the ratification of the 15th Amendment to the Constitution. Two election officers were charged with violation of the Enrollment Act because they refused to receive and count a ballot from a negro, though they did so in accordance with state law.
The case is United States v. Reese (92 US 214), heard in 1875.
The 15th amendment (1870) reads:
Section 1–The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2–The Congress shall have power to enforce this article by appropriate legislation.
The Enrollment Act of 1870 was enacted by Congress under the authority of Section 2 of that Amendment. The portions of that Act in question are the provisions of sections 3 and 4.
Section 3 states, in part:
Sec. 3. … That whenever… any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote,… if it fail to be carried into execution by reason of the wrongful act or omission… of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon…; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act…”
The key here is that it says “any act”, without reference to “race, color, or previous condition of servitude.” Because of the broadness of the phrase, the court determined that the entire section was beyond the authority granted by the 15th amendment, to wit:
The third section does not in express terms limit the offence of an inspector of elections, for which the punishment is provided, to a wrongful discrimination on account of race, &c.
The statute contemplates a most important change in the election laws. Previous to its adoption, the States, as a general rule, regulated in their own way all the details of all elections.
Section 4 states, in part:
Sec. 4. That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall [penalties listed].
Again, we have a very broad brush, with no reference to “race, color, or previous condition of servitude”. The court responded:
[W]e find there no words of limitation, or reference even, that can be construed as manifesting any intention to confine its provisions to the terms of the Fifteenth Amendment. That section has for its object the punishment of all persons, who, by force, bribery, &c., hinder, delay, &c., any person from qualifying or voting. In view of all these facts, we feel compelled to say, that, in our opinion, the language of the third and fourth sections does not confine their operation to unlawful discriminations on account of race , &c. If Congress had the power to provide generally for the punishment of those who unlawfully interfere to prevent the exercise of the elective franchise without regard to such discrimination, the language of these sections would be broad enough for that purpose.
We are, therefore, directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall altogether.
Therefore, in this instance, since there was no constitutional nexus, Sections 3 and 4 were struck down as unconstitutional. It appears that if any law is unconstitutional, then it is no law, at all. However, shortly, we will see that a new source of laws, outside of the Constitution, will be put in place – though only to those who allow it.
Next, we will look at another Habeas Corpus case, which demonstrates the limitations of jurisdiction of federal law, as we saw in the Act of 1825. We will also see what establishes those spheres, laws, and tribunals for enforcement, as well as where jurisdiction is limited by the geographic boundaries and current status of certain parts of the United States.
The incident, for which Charles Mason Lane was tried, occurred in the Oklahoma territory, or, Indian territory. The trial was held in the “district court of the United States in and for the district of Kansas.”
The charge was,
“on or about the 4th day of July, in the year of our Lord one thousand eight hundred and eighty-nine, at that part of the district of [judicial] Kansas aforesaid, the same being a place and district of country under the exclusive jurisdiction of the United States, and within the exclusive jurisdiction of this court, with force of arms in and upon one Frances M. Skeed, a female under the age of sixteen years, then and there being, violently and feloniously did make an assault, and her, the said Frances M. Skeed, then and there, forcibly and against her will, feloniously did ravish and carnally know [Skeed]…”
Associate justice Samuel Miller gave the decision in In Re Lane (135 US 443), on April 28, 1890.
The law in which Lane was alleged to be in violation of was
“the act of congress approved February, 9, 1889, c. 120, (25 St. 658,) under which defendant is indicted and convicted, it is provided ‘that every person who shall carnally and unlawfully know any female under the age of sixteen years, or who shall be accessory to such carnal and unlawful knowledge before the fact, in the District of Columbia or other place, except the territories, over which the United States has exclusive jurisdiction, or on any vessel within the admiralty or maritime jurisdiction of the United States, and out of the jurisdiction of any state or territory, shall be guilty of a felony, and when convicted thereof shall be punished by imprisonment at hard labor, for the first offense, for not more than fifteen years, and for each subsequent offense not more than thirty years.’
And in the decision, in which a writ of habeas corpus was denied, we find:
“We think the words ‘except the territories’ have reference exclusively to that system of organized government long existing within the United States, by which certain regions of the country have been erected into civil governments. These governments have an executive, a legislative, and a judicial system. They have the powers which all these departments of government have exercised, which are conferred upon them by act of congress; and their legislative acts are subject to the disapproval of the congress of the United States. They are not in any sense independant governments… Yet they exercise nearly all the powers of government under what are generally called ‘organic acts,’ passed by congress, conferring such powers on them. It is this class of governments, long known by the name of ‘territories,’ that the act of congress excepts from the operation of this statute, while it extends it to all other places over which the United States have exclusive jurisdiction. Oklahoma was not of this class of territories. It [Oklahoma territory] had no legislative body. It had no government. It had no established or organized system of government for the control of the people within its limits, as the territories of the United States have, and have always had.”
What can we conclude from this? The States each have “have an executive, a legislative, and a judicial system”; recognized, or organized, territories, “have an executive, a legislative, and a judicial system”. However, those lands that are not within either a state or an organized territory, under the authority granted by the Constitution, in article IV, section 3, clause 2, grants Congress the “Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belong to the United States…”
We have come to assume that all laws enacted by Congress, absent the limiting phraseology, act upon all of us. That assumption, however, is in contradiction with the Constitution. Clearly, in times past, those separate spheres; those limitations on jurisdiction; and the creation of laws, were well-defined and limited. It is evident that the state had the right to make laws that were not in conflict with the Constitution. How, then, could the federal government enact laws that would be in conflict, or contradiction, to state laws that are not in conflict with the Constitution? It is an untenable situation to think that one would have to decide which of two conflicting laws he was bound to abide by.
Let us see if there is another situation that might allow the general government to act upon someone that it does not have lawful authority to act upon.
To understand “standing”, the right or obligation to appear in a certain court, we have to look as things were before the ratification of the Fourteenth Amendment. This matter comes to light, and understand this, that it is a very significant point in dealing with the judicial system, in Dred Scott v. Sandford (60 U.S. 393), heard in 1856. In this decision, notwithstanding the subject of the case, rather, with consideration of a rather obscure but significant portion of the decision, we find that Scott had no standing. Scott was a freed slave, as such, he was not deemed a citizen capable of entering the federal judicial system. At that time, most states would not allow a negro to testify against a white man, or sit on a jury. Regardless of your present perspective, that was the law, at that time. However, the Court decided to hear the case, anyway.
“That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated. If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed. It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court.”
Sandford “plead over” (he filed with the court), and, in so doing, he failed to challenge the prohibition (absence of jurisdiction) of Scott’s lack of right to enter the jurisdiction of the court. So, what we have is, if I don’t challenge the jurisdiction of the court, instead, I plead, or otherwise fail to challenge jurisdiction, the court may deem that the right to challenge as waived and the court is free to proceed.
Now, we understand that if we assume that we have to submit to the court, when charged with any crime, then the court will assume that we have ‘granted’ them jurisdiction. This does not mean that you are not subject to the court’s jurisdiction in certain cases, such as counterfeiting, treason, or any law passed within the authority granted by the enumerated powers. This is, however, very important in securing your right to Habeas Corpus — to challenge the lawfulness of the law that you are charged with violating. As we proceed, you will begin to understand.
As you have just seen, Scott was allowed to proceed in court, since Sandford failed to object. If Sandford had objected to Scott’s right to go to that court, the case would have stood, as had been previously decided by the state court – and in Sandford’s favor. It was Scott that appealed the lower court’s decision. Therefore, when there are two classes of people, it is important to differentiate between those two classes, and, to determine which class you are, and, whether the law, you are charged to be in violation of actually applies to you.
In 1868, something occurred that changed the nature of the government and the people of the United States; the 14th Amendment was ratified. It reads, in part:
Section 1–All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Let’s look closely at this sentence. “All persons born or naturalized in the United States,” well, that is pretty inclusive. However, the next phrase, “and subject to the jurisdiction thereof,” limits that inclusiveness to those “subject to the jurisdiction thereof.”
As we have seen from the previous cases, those who were citizens before the 14th Amendment was ratified, were not “subject to the jurisdiction thereof,” except when there was a constitutional nexus.
We have one class of people (Citizens), who created the Constitution. We have another class of people (citizens) that were created by the Constitution. There is nothing in the Constitution, or the 14th Amendment, that dissolved the first class; therefore, we must assume that it still exists, andm we will see that the Supreme Court still recognizes this fact.
So, the question arises, did the 14th Amendment change the nature of those who were already citizens? The answer can be found in the next case.
It was over 40 years after the 14th amendment was ratified (1908) that this next case was heard. Albert C. Twining and David C. Cornell were convicted of providing “false papers” to the state banking examiner. They were sentenced to prison and Twining appealed to the United States Supreme Court, based upon his Fourth Amendment rights. He argued that the requirement to turn over papers to the examiner, absent a court order, denied him due process clause under the 14th Amendment. Twining and Cornell were both citizens of New Jersey. Since they were citizens of New Jersey (state), they were not within the jurisdiction of the Court; therefore, the Court had no jurisdiction (federal) over them.
Justice Moody provided the decision of the court in Twining v. State of New Jersey (211 US 78):
In order to bring themselves within the protection of the Constitution it is incumbent on the defendants to prove two propositions: First, that the exemption from compulsory self- incrimination is guaranteed by the Federal Constitution against impairment by the states; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at bar. The first proposition naturally presents itself for earlier consideration. If the right here asserted is not a Federal right, that is the end of the case. We have no authority to go further and determine whether the state court has erred in the interpretation and enforcement of its own laws.
That last point, “If the right here asserted is not a Federal right, that is the end of the case“, will lead to the final decision of the Court. Does it also hold that if no right is conferred, that there is an absence of jurisdiction?
We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.
This tells us that there is, without a doubt, a limitation on the jurisdiction of the federal government. If the Constitution does not provide for jurisdiction, they cannot assume to have jurisdiction, except as was noted. If Twining had been a citizen created by the 14th Amendment, he would have been afforded the due process protection of the 14th Amendment. Not being of that class of citizen, he came solely under state laws and protection of the state Constitution.
As we saw in Barron v. Baltimore (1833), the federal Constitution provided only protection from the federal government. Twining v. State of New Jersey (1908), shows that such federal jurisdiction did not apply to those who were not of the nature of the citizens created by the 14th Amendment.
Dred Scott v. Sandford demonstrated that if we acquiesce to the jurisdiction of the court, whether proper or not, the court may assume that you are there properly, and proceed, absent any other consideration of jurisdiction.
Twining v. State of New Jersey, particularly, brings home the point that, more than two generations after the 14th Amendment was ratified, there was still a distinction between those who were citizens of a state and those who were not afforded the protection of the Constitution, if the matter was between them and state laws and their respective constitutions.
The Fourth Branch of Government, and, who is subject to that unconstitutional branch
We are lead to believe that the United States Supreme Court rules on the constitutionality of a law when a case is brought before it. We are often quite surprised when it appears that the Supreme Court ruled contrary to the Constitution. Perhaps an understanding of another “separation” that exists, though not of the nature of the person, rather the nature of the laws themselves.
For at least a few decades, those with direct relationships with the federal government were being subjected to decisions that did not seem quite consistent with the Constitution. It was not until 1936, however, that Justice Brandeis provided insight into the changing nature, or perhaps more correctly, expanding nature of the court. The case was Ashwander v. Tennessee Valley Authority (297 US 288). Justice Brandeis, in a separate but concurring decision, provided insight into the evolving role of the United States Supreme Court, wherein he said:
The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:
1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions ‘is legitimate only in the last resort…
2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’
3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter…
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
7. ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.
Didn’t Justice Brandeis just tell us that they would not rule on the constitutionality of a matter before them, if they could find any way to avoid such ruling?
He also speaks of “statutes”. What statutes could be enacted by Congress, if they were not consistent with the Constitution? Well, Congress has the power of “exclusive Legislation” (Article I, Section 8, clause 17), and the power to “make all needed Rules and Regulations” (Article IV, Section 3, clause 2) that authorize enacting laws under certain circumstances. Suppose they enact a law that would fall within this scope; however, they allowed people to voluntarily “subject” themselves to that law by partaking in perceived benefits, or, that the people do not fully realize the true nature of such a law and who it applies to.
To simplify this, let’s suppose that you are watching some people playing a game of Monopoly. If you decide to join a game of Monopoly, once you have rolled the dice, you are bound by the rules of the game. If, however, you do not choose to play Monopoly, you are not bound by the rules of the game.
After all, Justice Brandeis said that “The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.” So, by some intricate means, if you have sought a benefit, under a statute, you may have just left the Constitution behind.
Now, this would be understandable if particular circumstances, say of your business, warranted cooperation with a government agency. This appears to be the case, at the time of the Ashwander decision.
However, in the next 10 years, things were to change.
We all know that we have a tripartite (composed of or divided into three parts) form of government. The three branches, legislative, executive, and judicial, were created by the Constitution, in the first three articles.
What if we had four branches of government? Would that fourth branch be unconstitutional? Or, could it exist under the provisions of the previously mentioned Article I, Section 8, clause 17, and/or, Article IV, Section 3, clause 2, respectively?
The Congress shall have the Power… To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…
The Congress shall have Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States…
Just 10 years after the Ashwander decision, the Congress enacted the Administrative Procedure Act of 1946. Representative Pat McCarran (Democrat from Nevada) submitted the Bill, who also gave us some insight into its purpose, when he said (from the Congressional Record, March 12, 1946):
“We have set up a fourth order in the tripartite plan of government which was initiated by the founding fathers of our democracy. They set up the executive, the legislative, and the judicial branches; but since that time we have set up fourth dimension, if I may so term it, which is now popularly known as administrative in nature. So we have the legislative, the executive, the judicial, and the administrative.”
“Perhaps there are reasons for that arrangement. We found that the legislative branch, although it might enact a law, could not very well administer it. So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations. These rules and regulations are the very things that impinge upon, curb, or permit the citizen who is touched by the law, as every citizen of this democracy is.
“Senate bill 7, the purpose of which is to improve the administration of justice by prescribing fair administrative procedure, is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government. It is designed to provide guarantees of due process in administrative procedure.
“The subject of the administrative law and procedure is not expressly mentioned in the constitution, and there is no recognizable body of such law, as there is for the courts in the Judicial Code.
“Problems of administrative law and procedure have been increased and aggravated by the continued growth of the Government, particularly in the executive branch.
Therefore, the question arises as to whether the administrative branch of government, “the fourth dimension”, extends to all people, or just “the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government“. Given that the estimated population of the United States in 1946 was over 141 million people, which would mean that less than one percent were among those “hundreds of thousands of Americans“.
If we assume the former, that it only applies to those who come under the Administrative Procedure Act of 1946, that leaves cause to wonder whether the remaining 99 percent have fallen under the influence of the Act by other means, or simple inattention. If inattention, is it because they entered the court not understanding that they are entering the court that was acting in the capacity of an administrative tribunal?
If we recall what Taney said in Dred Scott v. Sandford, if one fails to challenge jurisdiction, the Court will assume that it has the authority to hear the matter before it. If so, then Habeas Corpus is the only means by which that overreaching government can be challenged as to the constitutionality of a law whereby they have sought to detain someone for a crime that is not within their jurisdiction.
Later, on May 24 (from the Congressional Record), Representative John Gwynne of Iowa provides insight into what “rule-making” is, when he said:
“After a law has been passed by the Congress, before it applies to the individual citizens there are about three steps that must be taken. First, the bureau having charge of enforcement must write rules and regulations to amplify, interpret, or expand the statute that we passed; rulemaking, we call it. Second, there must be some procedure whereby the individual citizen who has some contact with the law can be brought before the bureau and his case adjudicated… Finally, there must be some procedure whereby the individual may appeal to the courts from the action taken by the bureau.”
“Amplify, interpret, or expand”? Was the intention of the Act to apply only to the hundreds of thousands, who were among that less than one percent? Or, was the intention to circumvent the Constitution by establishing a despotic regime that was no longer bound by the Constitution?
Of course, if you have followed that second step, you will have sought a benefit under the statute, and thenceforth, be bound by the rules of the statute (administrative agency).
By 1936, with the Ashwander v. Tennessee Valley Authority decision, we have conclusive proof that the United States Supreme Court, which, as suggested by Chief Justice Marshall, is the interpreter of the Constitution, has been transformed into one that will avoid addressing constitutionality of a matter before it, “unless absolutely necessary”. Since the court cannot offer legal advice, their decision is based solely upon that information presented to them. They have not violated the Constitution; they have simply assumed that you have entered into an agreement with an agency of the government, and therefore you are bound by all of the conditions of that agreement.
If we recall what Taney said in Dred Scott v. Sandford, if one fails to challenge jurisdiction, the Court will assume that it has the authority to hear the matter before it. If so, then Habeas Corpus is the only means by which that overreaching government can be challenged as to the constitutionality of a law whereby they have sought to detain someone for a crime that is not within their jurisdiction.
Then, just 10 years later, with the Administrative Procedure Act of 1946, we find Congress, refining the means of avoidance of the Constitution by creating a fourth branch of government.
Summation – that puts all of the pieces neatly into place
Now that we have the historical elements, from prior to the Constitution through recent times, we can put these pieces together so that we may understand Habeas Corpus, and how we can restore it to its proper role. Since we have now put aside our misconceptions and preconceptions, we will put it together from the beginning.
We know that “the purpose of [habeas corpus] is to test the legality of the detention or imprisonment“. We know that the false imprisonment may be a result of “the ferocity of the times, and the occasional despotism of jealous or usurping princes” or, that “the oppression does not always arise from the ill nature, but sometimes from the inattention of government“, and, that “it is the great remedy of the citizen… against arbitrary or illegal imprisonment“.
If we consider the implications of this, we can see that one’s imprisonment under a law that is unconstitutional can be legally challenged by filing a Demand for Habeas Corpus; thus, an individual may very well be able to nullify a law that is either unconstitutional or inapplicable. This is not a State claiming that an enactment of Congress is unconstitutional, as there is no provision in the Constitution that allows a State to act in that capacity, except by granting Habeas Corpus, at the state level, and allowing that challenge to go to the United States Supreme Court, to be judged as to its constitutionality. This does not preclude going directly to the United States Supreme Court, if the charges are federal, and otherwise in violation of the Constitution, if the state and lower courts do not provide a remedy.
We have also seen that a response to a Demand for Habeas Corpus is supposed to be considered timely, even if the judge or justice is on vacation. After all, Liberty is one of the ideals upon which this country was founded. When a man’s liberty is unjustly taken, there is no excuse for delay in restoring his liberty.
We have seen that in 1833, in Barron v. City of Baltimore, though Barron sought protection under the Fourth Amendment, there was an absence of jurisdiction; that the Constitution applied only to the federal government; and, that the people of each state were able to determine which laws would apply to them, since they had legislative, executive, and judicial branches, within their respective states. As Justice Marshall said, the Constitution “is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.”
We have also seen that, in 1825, and enactment by Congress to provide for punishing those who damage government property was limited to land, “ceded to, and under the jurisdiction of the United States.” We also saw that the 1890 enactment that Lane was charged with applied only “in the district of Columbia, or other place, except for the territories, over which the United States has exclusive jurisdiction… and out of the jurisdiction of any state or territory.”
In the former, was it because Congress did not intend to protect their property if it was not in land ceded, or was it because they were explicit in defining the extent of that authority granted by the Constitution? If the latter, did they not care if it occurred in a state or established territory, or did they realize that when executive, legislative, and judicial branches existed under the will of the people, that federal jurisdiction ceased, unless authorized specifically by the Constitution?
In Ableman v. Booth, in 1858, we saw that the Fugitive Slave Act of 1850 had a direct nexus with the Constitution. The Act was a statutory enactment supporting the enforcement of Article IV, Section 2, clauses 2 and 3, of the Constitution.
In In Re Tarble, 1871, we also find the nexus to the military provisions of the Constitution.
Later, in 1875, and, United States v. Reese, we find that an amendment to the Constitution did not grant authority to punish beyond the explicit intent of the 15th Amendment. Federal charges were dismissed because there was no federal jurisdiction created by that amendment.
So, clearly, the requisite for a constitutional nexus has been established in both Habeas Corpus and other court cases. “There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres.”
Before we begin looking into the chicanery that led to the obfuscation of Habeas Corpus, we must first look at our relationship with the court. In 1856, the case was Dred Scott v. Sandford, we find that Scott had no standing, under the laws of the United States, to take his matter before the United States Supreme Court. Sandford, however, failed to challenge Scott’s standing, leaving it upon the court to decide whether to hear the case or not. This established precedence that allows the court to proceed, if objection is not made timely. Quite simply, if you enter court and do not properly object, the court may assume jurisdiction, even though not warranted by the law.
Now, we have learned that, except in certain circumstances, we were not subject to the jurisdiction of the United States. So, if 4th Amendment says that it extended to those who were “subject to the jurisdiction” of the United States, would it also include those who, prior to the amendment, were not subject to the jurisdiction of the United States?
Now, we learned from Dred Scott that Scott, a former slave, was not subject to jurisdiction. That, however, was prior to the 13th Amendment, which freed the slaves. Since most states would not recognize freed slaves as citizens, this new class of people became subject to the federal jurisdiction, by virtue of the Amendment. They, then, were “subject to the jurisdiction” of the United States.
The 14th Amendment, then, only applied to those who were not citizens at the time of its enactment.
We see this confirmed, in 1908, in Twining v. State of New Jersey. Twining and Cornell were citizens of New Jersey. They had not been incorporated into that new class of citizen created by the 14th Amendment. Since they were not citizens under the 14th Amendment, they were treated just as Barron was in 1833 – they were outside of federal jurisdiction. Had they been citizens under the 14th Amendment, they would have been under the jurisdiction of, and afforded the protection of, the 14th Amendment.
In 1936, Justice Brandeis, in Ashwander v. Tennessee Valley Authority, explained the rules that the Supreme Court had adopted over the past few decades. Those rules provide us insight into the workings of the court in which they endeavor to avoid ruling on the constitutionality of a matter before them, if at all possible, and if not possible, to make its ruling as narrow as possible.
So, the courts are willing to take a case presented to them, whether proper or not; and to avoid ruling on the constitutionality, if at all possible. What else could go wrong?
Though there had been administrative agencies prior to the Administrative Procedure Act of 1946, there had not been a codification that provided for the enforcement of Administrative Agency rules. So Congress created, by their own admission, a fourth branch of government. At that time, this fourth branch affected less than one percent of the population. However, by failure, on the part of the people, to realize their evolving relationship with the federal government, we have come to a point in time where over 99% of the people find themselves subject to the these administrative agencies.
Habeas Corpus is the means by which we can challenge the jurisdiction of many federal laws, at least as they apply to us, effectively nullifying those laws. We simply have to learn how to not roll the dice, so that we are not bound by the rules of the game.
(To be continued – a Habeas Corpus, in its original context, has been sent to the United States Supreme Court. Once an outcome is reached, that will be written as Part 2 of the Habeas Corpus Story.)